United States Court of Appeals For the First Circuit _____________________

No. 23-1853 No. 23-2051

SEAFREEZE SHORESIDE, INC.; LONG ISLAND COMMERCIAL FISHING ASSOC., INC.; XIII NORTHEAST FISHERY SECTOR, INC.; HERITAGE FISHERIES, INC.; NAT. W., INC.; OLD SQUAW FISHERIES, INC.,

Plaintiffs, Appellants,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR; HONORABLE DEBRA HAALAND, in her official capacity as Secretary of the Department of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT; LIZ KLEIN, in her official capacity as the Director of the Bureau of Ocean Energy Management; LAURA DANIEL-DAVID, in her official capacity as Principal Deputy Assistant Secretary, Land and Minerals Management; UNITED STATES DEPARTMENT OF COMMERCE; HONORABLE GINA M. RAIMONDO, in her official capacity as the Secretary of the Department of Commerce; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE; CATHERINE MARZIN, in her official capacity as the Deputy Director of the National Oceanic and Atmospheric Administration; UNITED STATES DEPARTMENT OF DEFENSE; HONORABLE LLOYD J. AUSTIN, III, in his official capacity as the Secretary of the Department of Defense; UNITED STATES ARMY CORPS OF ENGINEERS; LT. GEN. SCOTT A. SPELLMON, in his official capacity as the Commander and Chief of Engineers of the U.S. Army Corps of Engineers; COLONEL JOHN A. ATILANO, II, in his official capacity as the District Engineer of the New England District of the U.S. Army Corps of Engineers; VINEYARD WIND 1, LLC,

Defendants, Appellees, RESPONSIBLE OFFSHORE DEVELOPMENT ALLIANCE, a D.C. nonprofit corporation,

Plaintiff, Appellant,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR; DEBRA HAALAND, in her official capacity as the Secretary of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT; LIZ KLEIN, in her official capacity as the Director of the Bureau of Ocean Energy Management; NATIONAL MARINE FISHERIES SERVICE; RICHARD W. SPINRAD, in his official capacity as the Administrator of the National Oceanic and Atmospheric Administration; UNITED STATES DEPARTMENT OF THE ARMY; CHRISTINE WORMUTH, in her official capacity as Secretary of the Army; UNITED STATES ARMY CORPS OF ENGINEERS; JAMIE A. PINKHAM, in his official capacity as the Acting Assistant Secretary of the Army for Civil Works; VINEYARD WIND 1, LLC,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Gelpí, Montecalvo, and Aframe Circuit Judges.

Theodore Hadzi-Antich, with whom Robert Henneke, Chance Weldon, Connor W. Mighell, and Texas Public Policy Foundation, were on brief for appellants, Seafreeze Shoreside, Inc., et al. Roger J. Marzulla, with whom Nancie G. Marzulla, were on brief for appellant, Responsible Offshore Development Alliance. Thekla Hansen-Young, with whom Todd Kim, United States Assistant Attorney General, United States Department of Justice; Luther L. Hajek, Perry Rosen, Mark Arthur Brown, Angela Ellis, Kevin W. McArdle, Environment and National Resources Division, United States Department of Justice; Stephen R. Vorkoper, Office of the City Solicitor, United States Department of Interior, Lea

- 2 - Tyhach, Scott Farley, National Oceanic and Atmospheric Administration, Office of General Counsel, and Matthew J. Harris, United States Army Corps of Engineers, were on brief for appellees, United States Department of the Interior, et al. Peter R. Steenland, with whom Jack W. Pirozzolo, David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, and Sidley Austin LLP were on brief for, appellee, Vineyard Wind 1, LLC.

December 5, 2024

- 3 - AFRAME, Circuit Judge. These appeals challenge the

federal government's process for approving a plan to construct and

operate a large-scale commercial offshore wind energy facility.1

The facility, which began delivering power to the New England grid

in early 2024, is located on the Outer Continental Shelf, some

fourteen miles south of Martha's Vineyard and Nantucket. The

plaintiffs are entities involved in or associated with the

commercial fishing industry. The defendants are federal

departments, agencies, and officials responsible for the plan

approval process, as well as the business entity that successfully

submitted the proposed plan and is constructing and operating the

facility. The plaintiffs sued to obtain declaratory and injunctive

relief, asserting thirty-nine claims under the Administrative

Procedure Act ("APA"),

, and several

environmental statutes, described below. The district court

entered summary judgment for the defendants on all claims. The

plaintiffs appeal, arguing that the district court erred in

multiple respects. We affirm.

1 The appeals were briefed and argued separately, but we address them together in this opinion. - 4 - I.

A. The Parties

The plaintiffs in case no. 23-1853 are Seafreeze

Shoreside, Inc., a Rhode Island seafood dealer; the Long Island

Commercial Fishing Association, Inc., a trade group representing

New York's commercial fishing industry ("LICFA"); XIII Northeast

Fishery Sector, Inc., a private organization of commercial

fishermen located in the Northeast; and three commercial fishing

companies: Heritage Fisheries, Inc.; Nat. W., Inc.; and Old Squaw

Fisheries, Inc. We refer to these entities collectively as the

"Seafreeze plaintiffs" and to case no. 23-1853 as the "Seafreeze

appeal."

The defendants in the Seafreeze appeal are the

Department of the Interior; the Honorable Debra Haaland, in her

official capacity as Secretary of the Interior; the Bureau of Ocean

Energy Management ("BOEM"); Liz Klein, in her official capacity as

the BOEM's Director; Laura Daniel-David, in her official capacity

as the Interior Department's Principal Deputy Assistant Secretary

of Land and Minerals Management; the Department of Commerce; the

Honorable Gina M. Raimondo, in her official capacity as Secretary

of Commerce; the National Oceanic and Atmospheric Association

("NOAA"); the National Marine Fisheries Service ("NMFS");

Catherine Marzin, in her official capacity as Deputy Director of

the NOAA; the Department of Defense; the Honorable Lloyd J. Austin - 5 - III, in his official capacity as Secretary of Defense; the Army

Corps of Engineers ("the Corps"); Lt. Gen. Scott A. Spellmon, in

his official capacity as the Corps' Commander and Chief of

Engineers; Col. John A. Atilano, II, in his official capacity as

the Corps' District Engineer of the New England District; and

Vineyard Wind 1, LLC, which submitted the approved plan and is

constructing and operating the facility. Vineyard Wind 1 was not

initially sued but successfully intervened as a defendant. We use

"Vineyard Wind" to refer both to the project and its developer.

The plaintiff in case no. 23-2051 is Responsible

Offshore Development Alliance ("Alliance"), a D.C. nonprofit whose

membership includes fishing associations, seafood dealers, seafood

processors, fishing vessels, and affiliated businesses. We refer

to case no. 23-2051 as the "Alliance appeal."

The defendants in the Alliance appeal are the Interior

Department; Secretary Haaland in her official capacity; the BOEM;

Director Klein in her official capacity;2 the NMFS; Richard W.

Spinrad, in his official capacity as the NOAA's Administrator; the

Department of the Army; Christine Wormuth, in her official capacity

as Secretary of the Army; the Corps; Jamie A. Pinkham, in his

2 The case caption lists Amanda Lefton as the BOEM's Director. Director Klein replaced Director Lefton in 2023. - 6 - official capacity as Acting Assistant Secretary of the Army for

Civil Works; and Vineyard Wind.

B. Statutory Background

1. The Seafreeze Appeal

The Seafreeze appeal involves claims pursuant to, inter

alia, the APA and the following environmental statutes:

a. The Outer Continental Shelf Lands Act

The Outer Continental Shelf consists of all submerged

lands beyond those reserved to the States and up to the edge of

the United States' jurisdiction and control.

(a)(1). The Outer Continental Shelf Lands Act ("OCSLA")

regulates the federal government's leasing of mineral and energy

resources on these lands. See

§§ 1331-1356c. The OCSLA

establishes the Outer Continental Shelf as a "vital national

resource reserve" that "should be made available for expeditious

and orderly development, subject to environmental safeguards, in

a manner which is consistent with the maintenance of competition

and other national needs." Id. § 1332(3).

To further these goals, the OCSLA authorizes the

Department of the Interior, in consultation with other federal

agencies and acting through the BOEM, to grant leases on the Outer

Continental Shelf for the purpose of, inter alia, renewable wind

energy production. Id. § 1337(p)(1)(C);

. When

granting such leases, the BOEM must "ensure that any activity under - 7 - [the OCSLA] is carried out in a manner that provides for" twelve

criteria including, insofar as is relevant, safety; protection of

the environment; conservation of natural resources of the Outer

Continental Shelf; prevention of interference with reasonable uses

of the Outer Continental Shelf (as determined by the Interior

Secretary); and consideration of any other use of the sea or

seabed, including use for fishing and navigation.

(p)(4);

(a).

The BOEM's issuance of a lease does not itself authorize

development of the site. See

(a). To proceed

to development, a lessee must formulate a site assessment plan,

obtain the BOEM's approval of that plan, and then obtain the BOEM's

approval of a construction and operations plan ("COP"). See

generally

§§ 585.600, 585.605-607, 585.610-614, 585.620-622,

and 585.626-628. No construction may begin until the BOEM approves

the COP. Id. § 585.620(c).

The OCSLA contains a citizen-suit provision.

(a)(1).

b. The National Environmental Policy Act

The BOEM must comply with the National Environmental

Policy Act ("NEPA") when approving a COP.

.

The NEPA is a procedural statute that requires federal agencies to

take a "hard look" at the environmental impacts of and alternatives

to a proposed action. Beyond Nuclear v. U.S. Nuclear Regul. - 8 - Comm'n,

(1st Cir. 2013). Generally, the vehicle

for the required analysis is an environmental impact statement

("EIS"). See

(C). The EIS must analyze, inter

alia, the "'reasonably foreseeable environmental effects' of the

proposed action, the 'reasonable range of technically and

economically feasible alternatives' to the proposed action, and

reasonable measures to mitigate the environmental effects of the

proposed action." Nantucket Residents Against Turbines v. U.S.

Bureau of Ocean Energy Mgmt.,

(1st Cir. 2024)

(quoting

(C)). The NEPA "'does not mandate

particular results, but simply prescribes the necessary process'

for evaluating an agency action's environmental effects."

(quoting Robertson v. Methow Valley Citizens Council,

(1989)). This process is designed to prevent uninformed

agency action and to provide information about environmental

impact to the public and other government agencies so that they

have an opportunity to respond. See Town of Winthrop v. FAA,

(1st Cir. 2008).

The NEPA does not contain a citizen-suit provision and

is enforced through the judicial review provisions of the APA.

See Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife

Serv.,

(1st Cir. 2012).

- 9 - c. The Endangered Species Act

The BOEM also must comply with the Endangered Species

Act ("ESA") when approving a COP. Section 7 of the ESA requires

agencies to ensure that their actions are "not likely to jeopardize

the continued existence of any endangered species or threatened

species or result in the destruction or adverse modification of

habitat of such species . . . ."

(a)(2). To this

end, a lead agency (here, the BOEM) must consult with the NMFS

whenever an agency action "may affect" a listed marine species or

critical habitat.

(a); see also Nantucket

Residents,

. When such a consultation is required,

the NMFS must issue a "biological opinion" stating whether the

contemplated agency action is "likely to jeopardize the continued

existence" of any listed species or "result in the destruction or

adverse modification of critical habitat."

(g)(4), (h). If so, the NMFS also must determine whether

"reasonable and prudent alternatives" are available.

§ 402.14(g)(5). The opinion must be based on the "best scientific

and commercial data available." Id. § 402.14(g)(8); see also

(a)(2).

A lead agency must request reinitiation of consultation

following the NMFS's issuance of a biological opinion if the agency

has retained discretionary involvement in or control over the

contemplated action, and certain other conditions, including new - 10 - information becoming available, are satisfied. See

(a).

Generally, Section 9 of the ESA prohibits the "take" of

an endangered species within the United States or the territorial

seas of the United States. See Nantucket Residents,

;

(a)(1)(B). A "take" includes the harassment of

or harm to the species.

§ 1532(19). A section 9 prohibition

also can be applied to "threatened" (as opposed to endangered)

species. See

(d).

One form of take is an "incidental take." During

consultation, the NMFS may conclude that proposed agency action is

not likely to jeopardize an endangered or threatened species but

is reasonably certain to incidentally affect the species. In such

a situation, the NMFS issues an "incidental take statement" along

with its biological statement. See

§ 1536(b)(4); 50 C.F.R

§ 402.14(i). An incidental take statement details the extent of

the anticipated take, reasonable and prudent measures to minimize

and monitor it, and the terms and conditions under which such

measures will be implemented. See

(b)(4);

(i). A take authorized in compliance with the

incidental take statement is exempt from the ESA's take

prohibition. See

(o).

The ESA contains a citizen-suit provision.

(g). - 11 - 2. The Alliance Appeal

The Alliance appeal involves claims pursuant to, inter

alia, the APA, the OCSLA, the NEPA, the ESA, and two additional

environmental statutes.

a. The Marine Mammal Protection Act

Congress enacted the Marine Mammal Protection Act

("MMPA") to prevent marine mammals from "diminish[ing] beyond the

point at which they cease to be a significant functioning element

in the ecosystem of which they are a part . . . ."

(2). While the MMPA generally prohibits the take (including

the harassment) of marine mammals,

§§ 1372(a), 1371(a)

1362(13);

, it permits the NMFS to authorize, for

a period not exceeding one year, the incidental "taking . . . of

small numbers of marine mammals" if it concludes that "such

taking . . . will have a negligible impact on such species,"

(a)(5)(D)(i)(I).

Under the MMPA, there are two types of harassment: Level

A and Level B. Relevant here is Level B harassment, which is "'any

act of pursuit, torment, or annoyance' that has the 'potential to

disturb a marine mammal or marine mammal stock in the wild by

causing disruption of behavior patterns.'" Nantucket Residents,

(quoting

(18)(A)(ii), (18)(D)).

The required contents of an incidental harassment authorization

("IHA"), and the process for obtaining such an authorization, are - 12 - described in

(a)(5)(D)(ii)(I), (II), (III), and

, respectively.

The MMPA does not contain a citizen-suit provision and

is enforced through the judicial review provisions of the APA.

See Cetacean Cmty. v. Bush,

(9th Cir. 2004).

b. The Clean Water Act and the Rivers and Harbors Act

Congress enacted the Clean Water Act ("CWA") "to restore

and maintain the chemical, physical, and biological integrity of

the Nation's waters."

(a). The CWA prohibits the

"discharge of any pollutant" into "navigable waters," including

the "territorial seas," unless done in compliance with the Act.

§§ 1311(a), 1344(a), 1362(7);

, 328.3(a)(1),

328.4(a). The territorial seas generally include waters extending

seaward three nautical miles from the coast but may also include

other waters in contact with the open sea such as waters within

three nautical miles from islands. See

(8);

(a), 329.12(a).

Section 404 of the CWA authorizes the Secretary of the

Army, acting through the Corps, to issue permits for discharges of

dredged or fill material into waters of the United States.

, 1362(6)-(7). Permits must be issued in compliance

with both the Corps' permitting regulations, 33 C.F.R. pt. 320,

and regulations jointly developed by the U.S. Environmental

- 13 - Protection Agency ("EPA") and the Corps, known as the "Section

404(b)(1) Guidelines," 40 C.F.R. pt. 230.

The Corps' regulations require that a permitting

decision be based on "an evaluation of the probable impacts,

including cumulative impacts, of the proposed activity and its

intended use on the public interest."

(a)(1).

Similarly, the Section 404(b)(1) Guidelines require the Corps to

determine the potential impacts, including cumulative impacts, of

proposed discharges.

. The Section 404(b)(1)

Guidelines also state that the Corps should not issue a permit "if

there is a practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic ecosystem, so long

as the alternative does not have other significant adverse

environmental consequences."

§ 230.10(a). The purpose of the

analysis required by the Section 404(b)(1) Guidelines is to ensure

that proposed discharges will not have a significant adverse effect

on human health or welfare, aquatic life, aquatic ecosystems, or

recreational, aesthetic, or economic values. See id.

§ 230.10(c)(1).

The Corps also may issue permits to authorize the

installation of structures in navigable U.S. waters more than three

nautical miles from the coast. But it must do so pursuant to

Section 10 of the Rivers and Harbors Act ("RHA"), see

;

(b) & 322.3(a)-(b), and not the CWA. - 14 - The CWA contains a citizen-suit provision.

(a). The RHA does not contain a citizen-suit provision and

is enforced through the judicial review provisions of the APA.

See Huron Mountain Club v. U.S. Army Corps of Eng'rs,

, 390 & n.2 (6th Cir. 2013).

C. Factual and Procedural Background

We recently decided two appeals involving challenges to

the Vineyard Wind project brought by different plaintiffs. See

Melone v. Coit,

(1st Cir. 2024); Nantucket Residents,

. We draw from our opinions in those cases to set

forth the factual and procedural background of the Vineyard Wind

project. We then provide additional relevant facts as necessary.

In 2009, the BOEM began evaluating the possibility of

wind energy development on the Outer Continental Shelf off the

coast of Massachusetts, pursuant to its authority under the OCSLA.

Melone,

. After several years of review, in 2014,

the BOEM made "a small portion of the Massachusetts Wind Energy

Area -- a section of the Outer Continental Shelf -- available for

lease." Nantucket Residents,

(citing

(June 18, 2014)). In 2015, the BOEM leased a 166,886-acre

(or 675-square-kilometer) portion of the area to Vineyard Wind.

Melone,

.

In December 2017, Vineyard Wind submitted to the BOEM a

COP that proposed building an offshore wind project in an - 15 - approximately 76,000-acre zone of the lease area.

The COP

contemplated the construction of turbines and additional wind

energy infrastructure capable of generating approximately 800

megawatts of clean wind energy, enough to power approximately

400,000 homes. Melone,

; Nantucket Residents, 100

F.3d at 10. In response to Vineyard Wind's submission, several

federal agencies initiated an environmental review process.

In March 2018, the BOEM published a notice of intent to

prepare an EIS responsive to the Vineyard Wind proposal.

(Mar. 30, 2018). Following this notice, the BOEM held

five public "scoping" meetings in the vicinity of the proposed

project to identify issues and potential alternatives to the COP

for consideration in the EIS. In November 2018, Vineyard Wind

applied for permits under CWA Section 404 and the RHA to construct

an offshore cable transmission system that would connect the

turbines to a landfall site at Covell’s Beach in Hyannis,

Massachusetts. In December 2018, the BOEM issued a draft EIS,

-02 (Dec. 7, 2018), which it supplemented in June

2020.

Meanwhile, on December 6, 2018, the BOEM requested

consultation with the NMFS out of concern about the impact the COP

might have on the endangered right whale. Consultation commenced

in May 2019. On September 11, 2020, the NMFS issued a biological

opinion concluding that the Vineyard Wind project would likely not - 16 - jeopardize the continued existence of the right whale. The opinion

also contained reasonable and prudent mitigation measures deemed

necessary to reduce the project's potential effects on the right

whale. See generally Nantucket Residents,

. On

May 21, 2021, the NMFS issued to Vineyard Wind an IHA allowing the

non-lethal, "incidental Level B harassment of no more than twenty"

right whales. Melone,

.

On May 7, 2021, the BOEM requested that the NMFS

reinitiate consultation in response to two developments. First,

the BOEM had concluded that the September 11, 2020, biological

opinion did not fully assess the potential impacts on the right

whale of fish monitoring surveys to be conducted by Vineyard Wind

if its COP were approved. Second, more up-to-date information

regarding the right whale population had become available since

completion of the September 11, 2020, biological opinion. In

requesting reinitiation of consultation, the BOEM documented its

understanding that the September 11, 2020, biological opinion

"will remain valid and effective until consultation is completed."

The BOEM also represented that, if the COP were to be approved,

"it would not allow the commencement of the aforementioned [fish

- 17 - monitoring] surveys until [the reinitiated consultation] is

concluded."3

The NMFS agreed to reinitiate consultation and, on

October 18, 2021, issued an updated biological opinion. The

updated opinion again concluded that the project would likely not

jeopardize the right whale's continued existence. Both the 2020

and 2021 biological opinions also included incidental take

statements which concluded that, after mitigation measures were

implemented, the maximum anticipated take from project

3 In a contemporaneously issued file memorandum, the BOEM explained that, while it had requested reinitiation of consultation on the fishery monitoring plan, approval of the project would "neither jeopardize the continued existence of ESA-listed species nor destroy or adversely modify designated critical habitat." Supp. App. at 1683, Seafreeze Appeal. The memorandum emphasized that reinitiation of consultation to consider fishery monitoring plans as part of the proposed action would "not provide any new information concerning potential effects on threatened and endangered species from construction, operation, and decommissioning of the project and, therefore, [would] not change the determinations of the [September 11, 2020, biological opinion] for the rest of the project already considered in the Opinion." Id. at 1684; see also id. at 1683 ("The authorization of Vineyard Wind I and the fishery monitoring plan are not interdependent. Although approval of the fishery monitoring plan . . . would not occur but for the project, the authorization of [the project] is not dependent upon approval of the fishery monitoring plan."). The memorandum also stated that, if the BOEM were to approve the COP, "commencement of any monitoring activities would be conditioned on the conclusion of this reinitiation and compliance with any NMFS survey mitigation measures that may be identified and included in the revised Incidental Take Statement and implementing Terms and Conditions in the revised Opinion." Id. at 1684. - 18 - construction was Level B harassment of twenty right whales caused

by construction noise.

Between the issuance of the September 11, 2020, and

October 18, 2021, biological opinions, several other relevant

events took place. On December 1, 2020, Vineyard Wind notified

the BOEM that it was withdrawing its proposed COP from review in

order to conduct a technical and logistical analysis of the wind

turbine generator it had decided to use in the final project

design. See

(Mar. 3, 2021). This analysis

sought to "review updated project parameters to confirm that [they]

fell within the project design envelope" that the BOEM had used in

conducting its earlier review.

The notice stated that

Vineyard Wind intended to rescind its withdrawal of the COP upon

completion of its analysis. Less than two months later, on January

22, 2021, Vineyard Wind notified the BOEM that it had completed

its analysis and concluded that it did not need to modify the COP.

Vineyard Wind also requested that the BOEM resume its review of

the COP, and the BOEM did so, see 86 Fed. Reg. at 12494-95.

The BOEM issued a final EIS ("FEIS") on March 12, 2021.

(Mar. 12, 2021). The FEIS considered five

action alternatives (one of which had two sub-alternatives) to the

project proposed by Vineyard Wind in the COP. It also considered

a no-action alternative. The FEIS identified the COP, with

modifications drawn from several of the alternatives that the BOEM - 19 - had considered, as the preferred alternative. The FEIS also

included a lengthy assessment of potential impacts from the project

on the natural and human environment. It acknowledged that the

project would likely have a negative economic impact on commercial

fishing. But it suggested that potential revenue losses could be

offset by compensatory funds that Vineyard Wind had agreed to set

aside. It also proposed mitigation measures that would reduce

negative impacts.

On May 10, 2021, the BOEM, the Corps, and the NMFS issued

a joint record of decision ("ROD"). The ROD memorialized the

BOEM's selection of the preferred alternative in the FEIS, the

Corps' decision to issue the necessary CWA/RHA permits, and the

NMFS's decision to issue the IHA. The ROD stated that the

preferred alternative would allow eighty-four or fewer wind

turbines to be installed in 100 of the 106 locations proposed in

the COP. It also required that the turbines be placed in an

east-west orientation with each turbine separated by one nautical

mile.

The BOEM's approval of the COP was subject to several

non-discretionary mitigation, monitoring, and reporting measures.

The BOEM attached to the ROD a memorandum explaining why the

preferred alternative satisfied the requirements of the OCSLA and

other applicable regulatory authority. On July 15, 2021, the BOEM

issued its final approval of the COP. The approval was subject to - 20 - more than 100 pages of terms and conditions, including compliance

with any substantive amendments to the September 11, 2020,

biological opinion that might arise from the ongoing reinitiated

consultation. On January 20, 2022, after receiving the October

18, 2021, biological opinion from the NMFS, the BOEM confirmed its

final approval of the COP subject to the terms and conditions, and

prescribed reasonable and prudent measures, set forth in the

updated opinion.

The Seafreeze plaintiffs and the Alliance filed the

lawsuits underlying these appeals on December 15, 2021, and January

31, 2022, respectively. As explained, the Seafreeze plaintiffs

sued under the APA, the ESA, the NEPA, and the OCSLA. The Alliance

sued under the APA, the NEPA, the MMPA, the ESA, the OCSLA, and

the CWA/RHA. In both cases, the parties cross-moved for summary

judgment, and the district court, in a thoughtful order, granted

the defendants’ motions and denied the plaintiffs’ motions.

The district court concluded, inter alia, that (1) the

plaintiffs’ ESA claims were non-justiciable under Article III of

the Constitution, (2) the plaintiffs were outside of the zone of

interests protected by the NEPA, (3) the Alliance was outside of

the zone of interests protected by the MMPA, (4) the Alliance had

failed to identify a genuine issue of material fact as to whether

the Corps' issuance of the CWA Section 404 permit was arbitrary,

capricious, an abuse of discretion, unsupported by substantial - 21 - evidence, or otherwise not in accordance with law, and (5) the

plaintiffs had failed to identify a genuine issue of material fact

as to whether the BOEM’s approval of the project under the OCSLA

was arbitrary, capricious, an abuse of discretion, unsupported by

substantial evidence, or otherwise not in accordance with law.

These appeals followed.

II.

We review the district court's summary judgment rulings

de novo. See, e.g., Melone,

; Nantucket Residents,

. These include the court's Article III standing

and zones-of-interests rulings, the challenges to which raise

legal questions. In re Evenflo Co., Inc. Mktg., Sales Pracs. &

Prods. Liab. Litig.,

, 34 (1st Cir. 2022) (reviewing de

novo the district court's ruling on Article III standing); T.S. ex

rel. T.M.S. v. Heart of CarDon, LLC,

(7th Cir.

2022) (reviewing de novo the district court's zone-of-interests

ruling).

We also review de novo the district court's summary

judgment determinations that the defendants did not act in a manner

that was "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law," or that was "unsupported by

substantial evidence." Melone,

(quoting

(2)(A), (E)); see also Nantucket Residents,

.

An agency action or inaction is arbitrary or capricious if the - 22 - agency relied on factors Congress did not intend it to consider,

failed to consider an important aspect of the problem, explained

the decision in terms that run counter to the evidence, or reached

a decision so implausible that it cannot be ascribed to a

difference in view or the product of agency expertise. See Melone,

; see also Motor Vehicle Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co.,

(1983)).

Finally, we may affirm the district court's judgments on

any independent ground supported by the record. E.g., Puerto Rico

Fast Ferries LLC v. SeaTran Marine, LLC,

(1st

Cir. 2024).

III.

A. The APA/ESA Claims

We first consider the challenges to the district court's

grant of summary judgment to the defendants on the plaintiffs'

APA/ESA claims. As previously noted, the court dismissed these

claims as non-justiciable under Article III. Whether a claim

satisfies the demands of Article III implicates our subject matter

jurisdiction, e.g., United States v. Texas,

(2023), and so we must satisfy ourselves that we have subject-

matter jurisdiction before addressing the merits of a claim, see

Steel Co. v. Citizens for a Better Environment,

, 93-

102 (1998) (prohibiting the exercise of "hypothetical

jurisdiction"). We therefore begin by reviewing whether the court - 23 - properly concluded that the plaintiffs’ ESA claims were

non-justiciable based on the summary judgment record.

The plaintiffs presented the district court with three

developed theories of how the defendants violated the ESA. The

first two, advanced by the Seafreeze plaintiffs, targeted aspects

of the September 11, 2020, biological opinion, but not the

superseding October 18, 2021, biological opinion. The third,

advanced by the Alliance, argued that the sequence in which the

defendants acted resulted in the issuance of the ROD and approval

of the COP without there being in place a valid biological opinion.

The district court rejected all three arguments for a

lack of standing and, alternatively, mootness. As to standing,

the court first assessed the nature of the injuries that the

plaintiffs were entitled to assert. See, e.g., FDA v. All. for

Hippocratic Med.,

, 380 (2024) (observing that, to

establish standing, "a plaintiff must demonstrate (i) that she has

suffered or likely will suffer an injury in fact, (ii) that the

injury likely was caused or will be caused by the defendant, and

(iii) that the injury likely would be redressed by the requested

judicial relief"). The court concluded that, while each plaintiff

had adduced sufficient evidence of economic injury due to the

project's potential adverse effects on commercial fishing, no

plaintiff had adduced admissible evidence of non-economic injury.

In reaching this latter conclusion, the court rejected the - 24 - plaintiffs' arguments that they were appropriate parties to assert

environmental and aesthetic interests that would be harmed by the

project.

The district court then turned to whether the plaintiffs'

evidence of economic injury, causation, and redressability was

sufficient to establish that they had Article III standing to press

their ESA claims. See Lujan v. Defs. of Wildlife,

(1992) (emphasizing that, at the summary judgment stage, a

party claiming standing cannot rest on general allegations of

injury resulting from the defendant's conduct but rather must

adduce evidence to support the specific facts necessary to

substantiate its standing theory); see also Bennett v. Spear,

(1997). The court concluded that the plaintiffs'

evidence was insufficient to meet this burden as a matter of law.

With respect to the Seafreeze plaintiffs, who, again,

only sought to challenge aspects of the superseded September 11,

2020, biological opinion, the district court determined that they

had failed to adduce evidence that their economic injuries were

likely caused by the project's alleged negative impact on any

endangered species. With respect to the Alliance, the court

determined that it had failed to adduce evidence that the

procedural actions of which it complained regarding the two

biological opinions either likely caused its alleged injury or

likely caused any erroneous government decision. See Ctr. for - 25 - Biological Diversity v. EPA,

(D.C. Cir. 2017)

(observing that a plaintiff alleging procedural injury must show

both a connection between the error and a substantive agency

outcome and a connection between that outcome and the plaintiff's

particularized injury). In support of the latter ruling, the court

observed that the October 18, 2021, biological opinion, which the

Alliance did not challenge, served to break the chain of causation

underlying the Alliance's standing theory.

Alternatively, the district court concluded that all of

plaintiffs' claims were moot. As to the Seafreeze plaintiffs,

their ESA claims were moot because they had targeted the September

11, 2020, biological opinion, and not the superseding October 18,

2021, biological opinion, which was the ultimate basis for the

BOEM approving the COP. As to the Alliance, its ESA claim was

moot because the alleged procedural error was rendered immaterial

by the subsequent issuance of the superseding biological opinion,

which the Alliance did not challenge, and which, again, was the

ultimate basis for approving the COP.

On appeal, the Seafreeze plaintiffs present only one

developed argument challenging the district court's standing and

mootness rulings on their ESA claims.4 They assert that the court

4The section of the Seafreeze plaintiffs' brief challenging the district court's ESA rulings contains three subparts. The first presents the developed argument we are about to address.

- 26 - erred in refusing to recognize the LICFA's associational standing

to assert, on behalf of LICFA member David Aripotch, certain

non-economic environmental and aesthetic injuries arising from

Vineyard Wind's impact on the project area. Aripotch, who is not

a party, owns plaintiff Old Squaw and captains its boat. In the

district court, he submitted a declaration detailing the aesthetic

The second, titled "The Commercial Fishermen's ESA Claims Were Not Mooted And The [September 11, 2020, Biological Opinion] Violated ESA In Multiple Ways," contains five brief arguments. Two reiterate the Seafreeze plaintiffs' merits challenges to the September 11, 2020, biological opinion and add nothing to the justiciability analysis. The other three involve variations on a single theme: that challenges to the September 11, 2020, biological opinion are not moot because that was the opinion in effect when the agency defendants issued the ROD and approved the COP. We shall have more to say about this argument in our discussion of the Alliance's challenge to the court's dismissal of its ESA claim. The third, titled "The District Court Erred In Holding That The Commercial Fishermen Waived Certain ESA Arguments," asserts that the district court erred in regarding as waived for lack of summary judgment briefing nine additional ESA claims the Seafreeze plaintiffs had asserted in their complaint. But the record citations the Seafreeze plaintiffs provide in support of this argument only point to a few passing mentions of these claims and attempts to incorporate by reference arguments made elsewhere, often by parties to other Vineyard Wind lawsuits. The record therefore confirms that the merits of these claims were not developed and argued in the summary judgment papers. See Rocafort v. IBM, Corp.,

(1st Cir. 2003) (arguments raised in the complaint but not developed in summary judgment papers are waived); Exec. Leasing Corp. v. Banco Popular de P.R.,

(1st Cir. 1995) (parties must include within the four corners of their briefs any arguments they wish the court to consider and cannot circumvent page limits through incorporation by reference of arguments made elsewhere). The district court appropriately declined to address the merits of these claims. - 27 - and spiritual pleasures he derives from fishing and photographing

right whales and other marine life in the project area.

The district court rejected the argument for two reasons.

First, it concluded that Aripotch's personal injuries and

interests could not be imputed to Old Squaw, the corporation he

owns. Second, the court refused to allow the LICFA to assert

Aripotch's non-economic interests in the project area because the

LICFA did not demonstrate that those interests are germane to its

purpose of supporting fisheries management. See Friends of the

Earth, Inc. v. Laidlaw Env'tl Servs. (TOC), Inc.,

(2000) (observing that an association may have standing to sue

on behalf of its members when, inter alia, the member interest it

is asserting is "germane to the organization's purpose").

The Seafreeze plaintiffs challenge the ruling that the

LICFA failed to demonstrate that protection of Aripotch's

aesthetic and spiritual interests in the project area is germane

to its purpose. They call our attention to the LICFA's articles

of incorporation. Those articles indicate that the preservation,

maintenance, and welfare of the environment in the saltwater

fisheries "in Suffolk County [New York] and its environs," now and

for future generations, are among the purposes for which the LICFA

was formed in October 2001. The Seafreeze plaintiffs sought to

introduce the articles into the summary judgment record by means

of a motion for judicial notice filed after the summary judgment - 28 - briefing deadline had passed. The court denied the motion as an

untimely effort to supplement the summary judgment record.

The Seafreeze plaintiffs first say that this was

reversible error because "no timeliness requirement exists for

matters of judicial notice pertaining to standing, as

jurisdictional rules like standing may be raised at any time."

This argument is incorrect. Trial courts possess considerable

case-management authority, which includes the authority to set

deadlines for filing pretrial motions. Rosario-Díaz v. Gonzáles,

(1st Cir. 1998) (citing Fed. R. Civ. P.

16(b)(2)); see also Fed. R. Civ. P. 16(b)(3) (mandating that when

federal trial courts issue scheduling orders, those orders limit

the time for, inter alia, filing motions); L.R., D. Mass. 7.1(a)(1)

(authorizing the establishment of briefing deadlines). If

information calling into question the court's subject-matter

jurisdiction becomes available after such a deadline has passed,

the expiration of the deadline does not preclude an inquiry into

the court's power to hear the underlying claim. See Fed. R. Civ.

P. 12(h)(3) (stating that a court must dismiss an action if "at

any time" it determines "that it lacks subject-matter

jurisdiction" (emphasis supplied)). But this principle has no

bearing on the court's authority to place reasonable time limits

on the ability of a party asserting federal subject-matter

jurisdiction to produce proof that Article III standing exists. - 29 - See Town of Milton v. FAA,

(1st Cir. 2023) (party

asserting federal jurisdiction bears the burden of establishing

Article III standing).

The Seafreeze plaintiffs also invoke Fed. R. Evid.

201(c)(2), which states that a court "must take judicial notice if

a party requests it and the court is supplied with the necessary

information," and Fed. R. Evid. 201(d), which states that a court

"may take judicial notice at any stage of the proceeding."

According to the Seafreeze plaintiffs, these Rules obliged the

court to take judicial notice of the LICFA's articles of

incorporation, even though the deadline for summary judgment

briefing had passed. But even if the articles of incorporation

are a proper subject of judicial notice because the LICFA had filed

them with the New York Secretary of State, they would not provide

grounds for the LICFA to represent Aripotch's personal interests

in the project area.

The articles of incorporation establish only that a

stated purpose for incorporating the LICFA in October 2001 was to

protect the welfare of the environment in the saltwater fisheries

in Suffolk County and its environs. They do not establish, as a

matter of law, that this has been one of the LICFA's actual

purposes in the years since its founding. It would deprive the

defendants of their procedural right to contest the issue if we

were to draw the broader inference from a document introduced into - 30 - the record after the summary judgment briefing had closed.

Moreover, a commercial fishing association's interest in

protecting the welfare of the area in which its members carry on

their business does not, ipso facto, encompass an individual

member's observational interests in the right whale or

recreational interests in fishing and photography. And finally,

the area to which the LICFA's environmental interests allegedly

extend do not appear to include the project area, which is more

than sixty-five miles away from Suffolk County.

We turn now to the Alliance's challenge to the district

court's rejection of its ESA claim on justiciability grounds. The

Alliance does not explicitly engage the particulars of the court's

standing and mootness rulings. The section of the Alliance's

opening brief addressing the rejection of its ESA claim contains

two subparts. The first reiterates the merits of its ESA claim.

That claim, as we understand it, is that issuance of an ROD based

on a biological opinion that is subject to reinitiated consultation

is a per se violation of the ESA, regardless of (1) what the

agencies say about the ongoing validity and effectiveness of the

earlier opinion, (2) the limited and discrete nature of the

reinitiated consultation, and (3) steps the agencies take to ensure

that the terms and conditions and reasonable and prudent measures

contained within the updated opinion will be both enforceable and

enforced. The second subpart argues that the Alliance has properly - 31 - alleged and demonstrated both economic and environmental injuries

and a basis for representing the interests of its members.

The Alliance's lack of direct engagement with the

substance of the court's justiciability rulings in its opening

brief is itself grounds for rejecting its challenge to the entry

of summary judgment on its ESA claim. E.g., Cioffi v. Gilbert

Enters., Inc.,

(1st Cir. 2014) (observing that

an appealing party must explain "why a particular order is

erroneous"); Sparkle Hill, Inc. v. Interstate Mat Corp.,

(1st Cir. 2015) ("[W]e do not consider arguments for

reversing a decision of a district court when the argument is not

raised in a party's opening brief."). But, in any event, there is

no basis for disturbing the court's justiciability rulings on their

merits.

We assume solely for the sake of argument, but with

skepticism, that the ESA prohibits the issuance of an ROD and

approval of a COP while reinitiated consultation over a biological

opinion is ongoing, regardless of circumstances. Compare

Defenders of Wildlife v. BOEM,

(11th Cir. 2012)

(rejecting argument that the "BOEM's choice to reinitiate

consultation . . . automatically renders . . . former biological

opinions invalid," particularly where the prior opinions were

"reconfirmed" and "have not been withdrawn despite reinitiation of

consultations"), with Env'tl Prot. Info. Ctr. v. Simpson Timber - 32 - Co.,

, 1076 (9th Cir. 2001) (stating in dicta and

without elaboration that "[r]einitiation of consultation

requires . . . the NMFS to issue a new Biological Opinion before

the agency action may continue") (citation and internal quotation

marks omitted)). Even so, this assumption does not undermine the

court's justiciability rulings.

As explained above, the district court concluded, based

on the summary judgment record, that the Alliance lacked standing

to press its ESA claim because an event occurring after the alleged

procedural error (the initial issuance of the ROD and approval of

the COP without a valid biological opinion) broke the causal chain

between that error and both the agencies' substantive action

(approval of the COP) and the Alliance's alleged Article III injury

(economic harm from the operation of the project). For the same

reasons, the court concluded that the Alliance's ESA claim was

moot because an event occurring after the alleged procedural error

had rendered it immaterial.

The event on which both conclusions rest was the NMFS's

issuance of the superseding October 18, 2021, biological opinion,

whose merits the Alliance does not challenge. Once that

superseding biological opinion issued, the district court

reasoned, the Alliance could no longer claim that the alleged

procedural error remained a legal cause of either the relevant

substantive agency actions (the final COP approval) or the - 33 - Alliance's injury (economic harm caused by the COP approval).

Seafreeze Shoreside, Inc., et al. v. U.S. Dep't of the Interior,

et al., Nos. 1:22-cv-11091-IT, 1:22-cv-11172-IT,

,

at *28-29 (D. Mass. Oct. 12, 2023). Nor could the court provide

a remedy that might affect the matter at issue because the Alliance

alleged only an error that was no longer relevant to the agency

action under review. See

at *27 n.19 (citing Church of

Scientology of Cal. v. United States,

(1992)

(describing the essential characteristic of a moot case) and Rio

Grande Silvery Minnow v. Bureau of Reclamation,

(10th Cir. 2010) (holding moot an ESA claim that did not

challenge a superseding biological opinion)).

In its reply brief, the Alliance addresses the district

court's analysis by stating that the issuance of the superseding

October 18, 2021, biological opinion, and the January 20, 2022,

confirmation of the prior COP approval, "cannot cure" the BOEM's

earlier procedural error of issuing the ROD and approving the COP

while the 2020 biological opinion was under reinitiated

consultation. "Because the iron-clad rule of ESA is to look before

you leap," the Alliance says, "the later-issued [October 18, 2021,

biological opinion] is irrelevant to the BOEM's procedural duty to

comply with the ESA in rendering its decision [to issue the ROD]

on May 10, 2021."

- 34 - This argument misses the point. The significance of the

NMFS's issuance of the unchallenged superseding October 18, 2021,

biological opinion (and, we might add, the BOEM's January 20, 2022,

confirmation of its prior approval of the COP given the conclusions

in that unchallenged superseding opinion) does not lie in whether

they "cured" any earlier-occurring procedural error. Rather,

these later agency actions, taken as part of an ongoing and legally

authorized consultation process, precluded any basis for finding

that taint to the COP approval arising from its allegedly having

been issued without a valid biological opinion was having any

ongoing effect. And, if there was no basis in the summary judgment

record for finding that the procedural violation complained of was

having an ongoing effect, there was no basis in the record for

either enjoining or unwinding the project, which is the specific

relief the Alliance sought, or for concluding that the Alliance's

injury was redressable in any way.

The district court thus did not err in awarding summary

judgment to the defendants on the plaintiffs' APA/ESA claims.

B. The APA/NEPA and APA/MMPA Claims

We next consider the challenges to the district court's

grant of summary judgment to the defendants on the plaintiffs'

APA/NEPA claims and the Alliance's APA/MMPA claim. We consider

these challenges together because the court dismissed both sets of

claims for being outside the zones of interests of the - 35 - environmental statutes that the plaintiffs invoked. With respect

to the APA/NEPA claims, the court held that the plaintiffs did not

put forth competent evidence as to an environmental harm that would

impact their commercial fishing. With respect to the APA/MMPA

claim, the court held that the Alliance had not established a

cognizable interest in right whales or any other marine mammal.

An APA claimant must establish that the claim arguably

falls within the zone of interests to be protected or regulated by

the underlying statute. See Lexmark Int'l, Inc. v. Static Control

Components, Inc.,

(2014). As the word

"arguably" suggests, the zone-of-interests test "is not

'especially demanding.'"

at 130 (quoting

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

(2012)). Congress enacted the APA "to make

agency action presumptively reviewable," and we do not require

"any indication of congressional purpose to benefit the would-be

plaintiff." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians,

(internal quotation marks omitted) (quoting Clarke

v. Secs. Indus. Ass'n,

(1987)). Thus, the

zone-of-interests test "forecloses suit only when a plaintiff's

interests are so marginally related to or inconsistent with the

purposes implicit in the statute that it cannot reasonably be

assumed that Congress authorized that plaintiff to sue." Lexmark,

(quoting Match-E-Be-Nash-She-Wish Band of - 36 - Pottawatomi Indians,

(internal quotation marks

omitted)).

The zone-of-interests test was once treated as a

justiciability doctrine implicating the court's subject-matter

jurisdiction. See

at 128 n.4 (citations omitted). But in

Lexmark, the Supreme Court clarified that the test is not

jurisdictional but rather goes to whether the claimant has stated

a viable claim. See

(citations omitted). Therefore, we may

affirm a zone-of-interests-based dismissal on other grounds

supported by the record. See Puerto Rico Fast Ferries,

. But cf. Steel Co.,

(prohibiting

affirmance of the dismissal of a claim based on lack of subject-

matter jurisdiction by rejecting the claim on its merits).5

Here, we agree with the district court's

zone-of-interests ruling as to the Alliance's APA/MMPA claim. The

5 The plaintiffs' APA/NEPA challenges come to us in an odd procedural posture. The Seafreeze plaintiffs challenge both the district court's zone-of-interests ruling and the lawfulness under the NEPA of the BOEM's actions. The Alliance, however, challenges only the court's zone-of-interests ruling. It does not address the merits of its APA/NEPA challenge in either its opening brief or its reply brief, even though the government calls the lapse to its attention, and even though the success of its zone-of-interests argument would lead naturally to our consideration of the merits given the fully developed administrative record and opportunity the Alliance had to develop its APA/NEPA claims in the summary judgment briefing. Thus, to the extent that the Alliance intends to press any APA/NEPA claims that differ from those of the Seafreeze plaintiffs, they are waived. - 37 - Alliance argues that it may assert the aesthetic and recreational

interests in marine mammals (including the right whale) of

"Alliance member" David Aripotch. But this argument is based on

a misstatement. Aripotch's company, Old Squaw, is a member of the

Alliance, but Aripotch is not.6 Moreover, and in any event, the

protection of marine mammals such as the right whale is not germane

to the Alliance's purpose, which is to represent the interests of

commercial fisheries and related organizations. See Friends of

the Earth,

. The court properly awarded the

defendants summary judgment on the Alliance's APA/MMPA claim.

But we disagree with the district court's

zone-of-interests ruling as to the plaintiffs' APA/NEPA claims.

While the court was correct to reject as incompetent much of the

plaintiffs' evidence of environmental injury, the ROD itself

acknowledges that the discharge of fill material associated with

the project will have major adverse impacts on mollusks, fish, and

crustaceans in the project area. Moreover, the plaintiffs have

plausibly linked these adverse impacts to the expected adverse

economic effects of the project on their commercial fishing

6 In their responsive briefs, the defendants called our attention to the fact that Aripotch is neither a member of the Alliance nor a party to either of these consolidated appeals. The Alliance did not correct the misstatement in its opening brief or reply; rather, it simply changed its characterization of Aripotch from being an "Alliance member" to being a "representative" of an Alliance member. - 38 - interests. This is enough to satisfy the zone-of-interests test.

See Monsanto Co. v. Geerston Seed Farms,

(2010) (recognizing that plaintiffs whose alleged injuries from

agency deregulation had both environmental and economic components

fell within the APA and the NEPA's zone of interest).

Despite this, we affirm the dismissal of these claims.

On appeal, the Seafreeze plaintiffs develop three arguments that

the BOEM violated the NEPA's procedural requirements. They

explicitly premise all three arguments on an underlying assertion

that the BOEM was improperly motivated to reach decisions so that

Vineyard Wind could timely honor its prior contractual commitments

surrounding the project. The first argument is that this improper

motivation led the BOEM to limit its consideration of reasonable

alternatives to the project. The second is that it led the BOEM

to inappropriately revive the EIS process after Vineyard Wind's

December 1, 2020, provisional withdrawal of its proposed COP from

review to test the wind turbine generator it had decided to use.

The third is that it led the BOEM to fail to appropriately consider

the incremental impact of the project in combination with the

likely impact of other future, reasonably foreseeable offshore

wind development projects.

As an initial matter, the premise of the Seafreeze

plaintiffs' arguments is misguided. By regulation, the BOEM was

under an obligation to "briefly summariz[e] [in the FEIS] the - 39 - purpose and need to which the agency is responding,"

; to "[r]igorously explore and objectively evaluate all

reasonable alternatives,"

§ 1502.14(a); and, most importantly

for present purposes, to consider "the needs and goals of the

parties involved in the application or permit as well as the public

interest,"

(a)(2).7 Thus, where the agency is

not itself the project's sponsor, it may give substantial weight

to an applicant's preferences, at least insofar as it considers

alternatives. See Beyond Nuclear,

. This principle

derives from the fact that, under the NEPA, agencies must consider

only "reasonable" alternatives, meaning alternatives "bounded by

some notion of [technical and economic] feasibility,"

(quoting

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

(1978)), and only alternatives that would "'bring

about the ends of the proposed action,'"

(quoting Citizens

7 The FEIS identified the BOEM's purpose and need as "whether to approve, approve with modifications, or disapprove the COP to construct, operate, and decommission an approximately 800 MW, commercial-scale wind energy facility within the area of [Vineyard Wind's] lease to meet New England's demand for renewable energy." Supp. App. at 972, Seafreeze Appeal. It also noted, inter alia, that the "BOEM's decision on Vineyard Wind's COP is needed to execute [the BOEM's] duty to approve, approve with modifications, or disapprove, the proposed Project in furtherance of the United States' policy to make [Outer Continental Shelf] energy resources available to expeditious and orderly development."

The plaintiffs do not challenge the lawfulness of this purpose and need statement. - 40 - Against Burlington, Inc. v. Busey,

, 195 (D.C. Cir.

(1991)).

Apart from the erroneous premise, the Seafreeze

plaintiffs' APA/NEPA arguments fail to establish that the BOEM

engaged in arbitrary or capricious decisionmaking. The Seafreeze

plaintiffs challenge the BOEM's failure to consider alternatives

that would have required construction outside the lease area. But

the BOEM supportably concluded that these were effectively new

proposed actions that were not responsive to the agency's

regulatory obligation to address the Vineyard Wind proposal, which

was of course limited to the Vineyard Wind lease area. The BOEM

also supportably explained that it would consider proposals on

other lease areas through separate regulatory processes.

The Seafreeze plaintiffs also challenge the BOEM's

termination of the EIS process in response to Vineyard Wind's

request to provisionally withdraw the proposed COP from review,

and the agency's subsequent decision to permit Vineyard Wind to

rescind its withdrawal without providing an additional notice and

comment period. Vineyard Wind asserts that the Seafreeze

plaintiffs lack Article III standing to make this claim.

We agree, for reasons that track those explaining our

ruling that the plaintiffs lack standing to complain about the

allegedly improper issuance of the ROD and approval of the COP

while reinitiation of ESA consultation was underway. See supra - 41 - Part III-A. Here too, even if we assume (again, with skepticism)

that a second notice-and-comment period was required, the summary

judgment record does not permit a conclusion that any taint from

the alleged procedural error had a causal effect on the BOEM's

ultimate approval of the COP. See Lujan,

. The

Seafreeze plaintiffs point to no comment that they, or anyone else,

were precluded from submitting to the BOEM, and they suggest no

other practical effect that flowed from the absence of a second

notice-and-comment period. Any possibility of such an effect is,

moreover, implausible, given that the COP was unchanged and already

had been subject to extensive notice and comment. Thus, the

alleged procedural error was not a likely cause of the Seafreeze

plaintiffs' injury. See Ctr. for Bio. Div.,

. Nor,

therefore, could it justify enjoining or unwinding the project.8

Finally, the Seafreeze plaintiffs argue that the BOEM

failed to appropriately consider the incremental impact of the

8 In addition to complaining about the lack of an additional notice-and-comment period, the Seafreeze plaintiffs say that resuming review of the Vineyard Wind COP was ultra vires because nothing in the NEPA or the OCSLA "provides the BOEM with authority to resume review of a terminated COP." But again, even if we assume that to be so, the Seafreeze plaintiffs have provided no basis in evidence or argument for concluding that this alleged procedural error likely tainted the injury-causing event: ultimate approval of the COP. There is no likelihood of a different outcome had the BOEM been required to formalistically reconduct its review process from the start rather than picking up where it left off. Moreover, without a basis for finding a likely causal effect, there would be no proper basis for enjoining or unwinding the project. - 42 - project in combination with the likely impact of other future,

reasonably foreseeable offshore wind development projects. They

support this argument only with two conclusory allegations: (1)

"the Federal Defendants gutted the core of the cumulative impacts

analysis set forth in the Supplemental Draft EIS by removing much

of it from the [FEIS], thereby violating NEPA's regulations"; and

(2) "the Federal Defendants improperly segmented their NEPA

analysis" by "undercounting reasonably foreseeable offshore wind

development outside the lease area." The Seafreeze plaintiffs do

not elaborate upon either of these allegations.9 They therefore

have not put the correctness of the district court's ruling into

issue. See United States v. Zannino,

(1st Cir.

1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.") (citations omitted); see also

("It is not

9 In their reply brief, in response to the defendants' arguments that the Seafreeze plaintiffs' briefing of the cumulative-impacts issue was inadequate, the Seafreeze plaintiffs point to a portion of the executive summary of the supplement to the EIS that, they say, did not make its way into the FEIS. They also seek to clarify that their position with respect to the BOEM's alleged improper segmenting of its cumulative effects analysis is that the BOEM improperly failed to treat certain aspirational goals that the Biden administration set for offshore wind development as "reasonably foreseeable future actions," within the meaning of

, to be accounted for in the cumulative-impacts analysis. Arguments raised for the first time in a reply brief are ordinarily deemed waived, see Lahens v. AT&T Mobility P.R., Inc.,

, 328 n.1 (1st Cir. 2022), and we see no reason to depart from that principle here. - 43 - enough merely to mention a possible argument in the most skeletal

way, leaving the court to do counsel's work . . . .").

The district court did not err in awarding summary

judgment to the defendants on the plaintiffs' APA/NEPA and APA/MMPA

claims.

C. The APA/CWA Claims

We next consider the challenge to the district court's

grant of summary judgment to the defendants on the Alliance's

APA/CWA claims. Although the Alliance makes three arguments on

appeal, only one was properly preserved: that the Corps' decision

to issue a CWA Section 404 permit for the discharge of dredged or

fill material arbitrarily and capriciously failed to properly

account for the effect of the project on commercial fisheries,

wildlife, and the marine environment.10 The court did not

explicitly address this argument in its summary judgment order.

10 The Alliance also claims that certain misstatements regarding the scope of the project contained in the Corps' section of the ROD, later corrected as clerical errors in an August 4, 2021, ROD Supplement, reveal that the Corps did not understand the scope of the project it was permitting. This claim is not preserved. The district court held it waived because it was not pleaded in the Alliance's complaint, and the Alliance does not engage this ruling in its opening brief. See Lahens,

n.1. The Alliance also claims that, in issuing the permit, the Corps violated the CWA by failing to consider the cumulative impacts of Vineyard Wind and other surrounding offshore wind projects. But the Alliance did not raise this concern with the Corps during its public comment process. It therefore cannot now seek to establish that the Corps acted arbitrarily or capriciously on this basis. See Dep't of Transp. v. Pub. Citizen, 541 U.S.

- 44 - The Alliance argues that the Corps issued the permit

under the mistaken belief that the impacts of the project on

commercial fisheries, wildlife, and the marine environment would

be minor. In support of this argument, the Alliance points to

several statements in the FEIS which, if read in isolation, appear

to project more-than-minor impacts from the project on commercial

fisheries, commercial shipping, recreational vessel businesses,

mollusks, fish, and crustaceans. But the Alliance's brief omits

context that qualifies the statements in a manner that supports

the Corps' conclusion.

For example, the Alliance cites to a page in the FEIS

allegedly stating that the project will have "moderate to major

impacts on commercial fisheries." App. at 141, Alliance Appeal.

But in fact, that statement refers to the impacts of activities

"other than offshore wind." Id. at 141. Similarly, the Alliance

cites to alleged admissions that "offshore wind structures and

hard coverage for cables would have long-term impacts on commercial

fishing operations and support businesses such as seafood

752, 764-65 (2004); see also Vt. Yankee Nuclear Power Corp.,

(emphasizing that a party must have presented a position during the administrative process to later challenge an agency decision as arbitrary and capricious for failure to have taken the position adequately into account). In so ruling, we reject the Alliance's assertion, made in its reply brief without supporting record citation, that it preserved its litigation rights on this point through comments it submitted to the BOEM during the EIS's public comment period. - 45 - processing," and that "the impacts would increase in intensity as

more offshore structures are completed." Id. at 139. But the

very same sentence concludes that "the fishing industry is

anticipated to be able to adjust fishing practices over time in

order to maintain the commercial fishing industry in the context

of offshore wind structures." Id. And while the FEIS acknowledged

that increased vehicle traffic from the construction of future

offshore wind projects could result in congestion and delays that

could decrease productivity for commercial shipping, fishing, and

recreational vessel businesses, it also concluded that the project

would have negligible to moderate impacts on navigation and vehicle

traffic after required mitigation measures were implemented.

The Alliance also cites to pages in the Corps' section

of the ROD noting anticipated adverse project impacts on the

aquatic ecosystems. But those same pages note that some of these

effects will be temporary, that required mitigation measures will

reduce impacts, and that there may also be some environmental

benefits from the project. Overall, after extensive analysis, the

FEIS concluded that the project would have a moderate impact on

fish and other aquatic organisms.

The record does not support a conclusion that the Corps

acted arbitrarily or capriciously in issuing the CWA Section 404

permit because the Corps misunderstood the findings in the

- 46 - administrative record. The district court did not err in awarding

summary judgment to the defendants on the Alliance's APA/CWA claim.

D. The APA/OCSLA Claims

Finally, we consider the challenges to the district

court's grant of summary judgment to the defendants on the

plaintiffs' APA/OCSLA claims. The plaintiffs' principal appellate

argument is that the district court misunderstood OCSLA's core

statutory provision governing the approval of offshore wind

projects,

(p)(4), in holding that the BOEM had not

acted arbitrarily or capriciously in approving the COP. Again,

that provision imposes an obligation on the BOEM to "ensure that

any activity [under the OCSLA] is carried out in a manner that

provides for" twelve criteria including, insofar as is relevant,

safety; protection of the environment; conservation of natural

resources of the Outer Continental Shelf; prevention of

interference with reasonable uses of the Outer Continental Shelf

(as determined by the Interior Secretary); and consideration of

any other use of the sea or seabed, including use for fishing and

navigation.

The plaintiffs also argue that the court

impermissibly discounted their evidence of safety concerns,

environmental harms, and the devastating effect on commercial

fishing that the project would cause.

The plaintiffs' principal argument is based upon

mischaracterizations of the district court's reading of OCSLA - 47 - § 1337(p)(4). The Alliance says that the court interpreted "the

twelve mandatory requirements" as "discretionary considerations

that [the BOEM] could consider and balance." The Seafreeze

plaintiffs say that the court "decided to insert the word

'reasonably' into the statutory text to allow [the BOEM] to

ostensibly 'balance' [its] mandatory duties under Section

1337(p)(4) against other considerations." The Alliance also says

that the court read the statutory phrase "shall ensure" to

"'reflect[] Congress's intent to confer flexibility . . . .'" And

it further states that "the district court erroneously held" that

Congress gave the BOEM "the discretion to ignore [the twelve OCSLA

criteria] or to balance one off another. . . ."

The district court did not (1) treat the twelve OCSLA

criteria as discretionary considerations that the BOEM "could

consider," (2) read the word "reasonably" into the OCSLA, (3) say

anything close to what the Alliance purports to quote it as saying,

or (4) hold that the BOEM has the discretion to ignore or balance

criteria. In fact, the court explicitly acknowledged that the

OCSLA criteria are "mandatory," Seafreeze Shoreside, Inc., et al.

, at *44, and proceeded from the premise that the

BOEM must ensure that "each criterion is met" in a manner that is

"not to the detriment of the other criteria."

The district court held only that the BOEM must have

"discretion" in considering whether each statutory criterion is - 48 - satisfied, and that the BOEM must "balance" the statutory mandate

to develop energy projects on the Outer Continental Shelf with the

twelve statutory criteria for which it must provide. The

plaintiffs do not contest either of these points; in fact, they

appear to concede them. See Reply Br. for Alliance at 3

("[Defendants] incorrectly argue that the Alliance takes an

absolutist position, arguing that [the BOEM] lacks any discretion

at all in how to satisfy OCSLA's requirements. But this is not

true."). In any event, the plaintiffs have not provided us with

any basis for concluding that the district court's award of summary

judgment to the defendants was infected by a misreading of OCSLA

§ 1337(p)(4).

Nor have the plaintiffs provided any other reason to

find that the BOEM acted arbitrarily or capriciously under the

OCSLA in approving the project. In focusing exclusively on the

district court's alleged errors, the plaintiffs ignore the joint

ROD and a May 10, 2021, information memorandum in which James F.

Bennett, the Program Manager for the BOEM's Office of Renewable

Energy Programs, explains the conditions that the BOEM imposed on

the project and why approval of the project, with those conditions,

satisfies the OCSLA § 1337(p)(4) criteria. Instead, the

plaintiffs simply point to portions of the record which, when read

- 49 - in isolation, appear to raise safety and environmental concerns.11

The plaintiffs' position appears to be that, if a project is likely

to have any modicum of impact on one or more of the twelve OCSLA

criteria, the BOEM cannot approve it. See, e.g., Corrected Opening

Br. for Seafreeze Pls. at 44 (challenging the district court's

conclusion that the BOEM "still retains some discretion in

considering whether the enumerated statutory criteria have been

satisfied, even when the statute does not state so explicitly")

(citations omitted). But see Reply Br. for Alliance at 3

("[Defendants] incorrectly argue that the Alliance takes an

absolutist position, arguing that [the BOEM] lacks any discretion

at all in how to satisfy the OCSLA's requirements. But this is

not true.").

11 The plaintiffs also argue that the project likely will cause commercial fisheries to abandon the project area due to difficulties with navigation, in violation of OCSLA § 1337(p)(4). The plaintiffs support the argument by pointing to a statement to this effect that the Corps initially included in its section of the ROD but later removed with a clarifying statement, issued in the form of an ROD supplement, that inclusion of the statement "was based solely upon comments of interested parties submitted to BOEM during the public comment period" and "was not based upon any separate or independent [Corps'] or other agency evaluation or study, and accordingly does not represent the position of the [Corps] . . . ." The plaintiffs contest the veracity of the Corps' representation in the ROD supplement, but the ROD, taken as a whole, bears out the Corps' statement. See Supp. App. at 2016, Seafreeze Appeal (noting that the proposed discharge of fill "will likely have minor, long-term effects on recreational and commercial fisheries"); id. at 2023 (noting that the project "will have neutral impacts to navigation during construction and operation with the incorporation of mitigation"). - 50 - This absolutist argument fails. A statute encouraging

the development of offshore wind projects but obligating the BOEM

to ensure that such projects be carried out in a manner that

provides for safety, for example, cannot be read to prohibit

project approval simply because one could imagine the project being

involved in an accident. If that is the plaintiffs' position, we

reject it. Moreover, as was the case with their APA/CWA arguments,

see supra Part III-D, the plaintiffs' record citations in support

of the claim that the BOEM did not ensure that the COP would be

carried out in a manner that provides for the statutory criteria

omit necessary context. They fail to acknowledge either the

mitigation requirements that the BOEM imposed in response to the

safety and environmental concerns raised, or that the concerns

were raised in connection with alternatives that the BOEM had

rejected.

The district court did not err in awarding summary

judgment to the defendants on the plaintiffs' APA/OCSLA claims.

IV.

Before and after oral argument, we have received Fed. R.

App. P. 28(j) letters alerting us to recent developments that have

caused federal regulators to pause the project. These incidents,

occurring after the challenged agency decisions, are not relevant

to the arguments made in these appeals. See Town of Winthrop,

("[T]he focal point for judicial review should be the - 51 - administrative record already in existence, not some new record

made initially in the reviewing court.") (quoting Camp v. Pitts,

(1973)).

For the reasons explained, we affirm the judgments of

the district court.

- 52 -